The Call For Immigration Reform

Posted on December 11th, 2012, by Susannah Nichols in Immigration Law. Comments Off

Immigration reform chatter began shortly after the Republican defeat in the recent Presidential election. While most wondered if the new call for reform would die down, talk has led to the House passage of a new immigration reform bill on November 30. Talk of immigration reform is bringing new hope to the estimated eleven to twelve million immigrants currently in the United States without legal status. The election caused the Republican Party to realize it needs a more positive policy stance toward immigrants in order to stay viable in future elections. As a result, immigration reform has become a priority among the Republican Party. Immigration reform only became a partisan divide within the past few years but the new shift caused a great push toward reform legislation. The big question has now changed from whether or not immigration reform will pass, but how it will pass. Will Congress be able to pass a comprehensive act to meet the needs of the millions of out of status and undocumented immigrants? Will reform come in a more piecemeal effort by passing multiple tailored bills? Over the past few weeks, two Republican-proposed pieces of legislation, the ACHIEVE and STEM Jobs Acts, have been introduced in the House of Representatives.

The ACHIEVE Act was introduced on November 27 by retiring Senators Jon Kyl (R-Ariz) and Kay Bailey Hutchison (R-Texas). This Act, often referred to as the Republican DREAM Act, provides a pathway to permanent residency for certain immigrants who are out of status or unlawfully present. The proposed Act provides several steps toward residency.

The first tier, called the W-1 visa, would provide for the individual to attend school or enlist in the military and would be valid for a period of six years. In order to qualify one must demonstrate:

Arrival in the United States under the age of 14;

A minimal or no criminal record;

Current age under 28 (or 32 with a bachelor’s degree);

Knowledge of United States civics and the English language; and

Presence in the United States over the past 5 years.

The second tier, called the W-2 visa, provides work authorization and is available after meeting the education and/or military requirements of the W-1 visa. The final tier, the W-3 visa, is available after four years of work on the W-2 visa and would allow a recipient to apply for permanent resident status (a “green card”).

The ACHIEVE Act has not been well-received by immigration advocates outside the Republican Party. The Act is criticized for failing to provide a pathway to citizenship or to address fundamental issues within our immigration system.

The STEM Jobs Act was introduced by Rep. Lamar Smith and passed the House on November 30, 2012, mostly upon party lines. This Act eliminates the current diversity lottery and reallocates up to 55,000 permanent resident visas (green cards) to those with advanced degrees in science, technology, engineering and mathematics (“STEM”) fields. Immigrants who graduate from a qualifying university in the United States with either a Doctorate or Master’s degree in one of the STEM fields would be eligible. The bill outlines which universities would qualify, and requires that graduates must have a job offer in the United States along with an approved labor certificate in order to qualify for one of the new green cards. An approved labor certificate would demonstrate that there are not American workers who are willing, able, qualified, and available for the position in the job offer. A late addition to the bill allows spouses and children of legal permanent residents to come to the U.S. after waiting one year in their home country– and to enter as permanent residents.

The STEM Jobs Act has been met with resistance among many immigration lawyers and others in the immigration reform community, where it is seen as old Republican policy in new clothes. Much of the opposition to the bill centers around its elimination of the diversity lottery, which allows for visas to be set aside for those countries with lower immigrant populations in the United States. Due to this provision, the STEM Jobs Act is doubtful to pass the Senate.

While the future of these two newly proposed bills may remain uncertain, one thing is clear: immigration reform is a hot topic on Capitol Hill. President Obama pushed the topic to the forefront with his new “deferred action” immigration plan in June 2012, and was then reelected in November thanks in part to the overwhelming support of Latino voters. Reeling from their party’s defeat in the election, many prominent Republicans have begun speaking out publicly regarding the inevitability of immigration reform. Most notably, former Vice Presidential candidate Paul Ryan, former President George W. Bush, Senator John McCain, Senator Lindsey Graham and House Speaker John Boehner. While there may still be much to discuss before Congress and the President achieve a compromise, many are pleased to see that the discussion is taking place.

Susannah Nichols is an immigration attorney at Livesay & Myers, P.C. Her practice covers family-based and employment-based green cards, temporary visas, and citizenship. Ms. Nichols has a special focus on deportation cases, and has written extensively on the available forms of relief from deportation, including cancellation of removal and asylum.